Israel, the death penalty and apartheid

In July 2024, the International Court of Justice (ICJ) issued an advisory opinion on the status of the Occupied Palestinian Territory (OPT).¹ It found Israel’s continuing presence was unlawful and its policies including settlement and other discriminatory policies and practices against Palestinians were unlawful.¹ Said discriminatory policies and practices were a violation of Article 3 of the Convention on Eliminating Racial Discrimination, a violation of the prohibition on Apartheid.¹ Apartheid is in essence the crime of establishing a system of racial domination of one group over another by establishing a system oppression directed towards the victim group by seriously violating their fundamental rights.²

620 days later, Israel’s Knesset (parliament) approved a law whose purpose is to ’establish the death penalty for terrorists who carried out murderous terror attacks, as part of the fight against terrorism’.³ Said law is will not to apply to Israeli’s who kill Palestinians.⁴

It was described by one of the politicians who championed it as an end to the ‘revolving door for terrorists" and a ‘clear decision, whoever chooses terrorism chooses death’.⁵ Said politician leads a party whose MPs wore noose-shaped pins in support of the bill and who opened and shared a bottle of alcohol to celebrate its passage into law.⁵

His name is Itamar Ben-Gvir. He is Israel’s national security minister and a former lawyer.⁶

He is also a convicted terrorist.⁶

South African Apartheid:

The word apartheid comes from the Afrikaans word for ‘apartness’ and was the official name for the system of racial segregation created in South Africa in 1948.⁷ It is not merely separation between persons of different races. Nor is it an attempt to separate two equal but different people, as argued by many of the proponents of Jim Crowe in the US south, another example of historic apartheid.⁸ It is the crime of denying the fundamental equality of all persons and as a result creating system is designed to designate some people as “children of a lesser god”⁹.

Apartheid in South Africa Began in 1948 and the process of bringing it to an end occured between 1990 and 1994. There were four categories of persons under the system: White, Indian, Coloured (meaning mixed-race) and Black, with black people subject to the greatest deprivation of human rights.¹⁰ The designations determined according to appearance, ancestry, class, and cultural lifecycle.¹⁰ It is impossible to summarise the various measures that made up the apartheid system in this post and for further detail, readers are encouraged to examine the work of the Truth and Reconciliation Committee whose final reports can be found here: https://sabctrc.saha.org.za/reports.htm.

However, an extract from a speech given by Dora Tamana, an African anti-apartheid activist and long-term resident of Cape Town, illustrates the brutality of the system of apartheid in South Africa:¹¹

“Under the system an African cannot buy land or live outside locations and reserves which are set aside for him. We make up two thirds of the population but only one tenth of the country is set aside for us. Because we have no land for our crops and our cattle we must live and work on the white man’s farms, on the mines, factories and towns”.

“Only in this way can we pay the taxes and school fees, buy food and clothing, and pay our doctors’ bills. Yet, we are not allowed to travel to look for work without a permit… Our country is truly a prison house”

The crime of Apartheid:

In the decades long process of confronting Apartheid South Africa, the international community created a system of law condemning and criminalising apartheid, not merely to assist in bringing South Africa’s regime to an end as occurred in 1994, but also to ensure it was clear apartheid would not be tolerated, irrespective of whom commits it.

The first major step in establishing a system of law condemning apartheid occurred in 1965 with the creation of the International Convention on Eliminating Racial Discrimination.¹² Article 3 clearly prohibits apartheid.¹² Apartheid was later the subject of its own treaty in 1971 which sought to define and criminalise it.³ It was later designated a Crime against Humanity under the ICC (Rome) statute meaning persons can be subject to prosecution before the International Criminal Court.¹³

But the in process of creating treaty law about apartheid, a customary prohibition on the crime of apartheid also emerged. This is a form of law that emerges as the result of long-term state practice alongside the belief by states that such a practice is required by international law.¹⁴ Customs of international law bind all states unlike treaties which only bind signatories so states through their persistent rejection of Apartheid built an universal international prohibition.

However, the prohibition on Apartheid is not an ordinary a custom of international law. It is considered a pre-emptory (jus cognes) norm of international law.¹ Such a norm represents the most serious obligation upon states. As a result it prohibits third states from “recogniz(ing) as lawful a situation created by a serious breach” and requires them not to “render aid or assistance in maintaining that situation”¹⁵.

Why is the new law part of Israel’s apartheid system:

Inhuman acts in this context refer to serious violations of human rights including the right to life.¹⁴ Execution by definition is a violation of the right to life. This inherently is a serious violation of human rights. However, execution is permitted under certain international instruments despite this including the ICCPR.¹⁶ But what no international instrument permits is the use of execution as a punishment for persons of one race and excluding those of other races from its application. That is the essence of Israel’s new law.¹⁷

How is this achieved?

The law operates differently in the context of military and civilian courts. With regard to military courts, the law imposes the death penalty for killings that occur during terrorism offences as defined under Israeli law. Extending Israeli jurisdiction to the OPT was ruled to be unlawful and was an example of conduct the ICJ used to find Israel had illegally annexed Palestinian territory.¹ Such a sentence will not require a request from prosecutors and will not require unanimity amongst the judges who hear these cases, only a majority is required.¹⁸ Only where special circumstances are present, can the sentence be commuted.¹⁸

With regard to the civilian court system within Israel, the death penalty is imposed when a person kills another with the intention of negating the existence of the state of Israel.¹⁸ This intent requirement was clearly written to target Palestinians while limiting application to Israeli’s.

We do not know the true numbers of how many Palestinians are convicted in military trials. But in 2010, the Israeli government conceded that 99.74% of Palestinians tried before Military courts were found guilty.¹⁹ B’tselem estimates that 96% of such trials result in conviction and that these convictions are largely based on so called confessions that are extracted via duress and torture.²⁰ It should be noted that military trials of civilians in are likely to be unlawful in general,²¹ and are unlawful in the context of the OPT.¹⁷

By contrast, settlers who have killed Palestinians are subject to trial before civilian courts. Since the start of this decade, no settlers have been tried for such killings despite the fact they remain a regular occurance.²⁰ Such settlers if they were ever to be bought to trial, would face judges who have a choice between execution and life imprisonment under this law.²² Conviction rates for settlers found guilty by civilian courts of committing crimes against Palestinians in the West Bank were 3%.²⁰ Some 93.8 percent of investigations into settler violence were closed with no charges filed.²⁰

Executions under the new law will take place 90 days after a sentence is issued. 90 days is insufficient time for a proper appeal against conviction.¹⁸ For Palestinians the available routes of appeal are extremely limited.⁵ Those sentenced under this law will be held in a separate prison, with no visits and legal consultations will take place via video link.⁵ For Palestinians there is no possibility of Pardon or Commutation which alongside the mandatory nature of the death penalty is unlawful.¹⁷ The possibility of commutation is avaiable for Israeli’s.⁵

This divergence in treatment is the product of Israel’s apartheid. But this also exposes the law’s role in Apartheid in Israel. The law requires Palestinians living in East Jerusalem to have permits because it designates them as foreigners in their own land, in their own capital city.¹ The law requires permits for buildings in area C of the West Bank while making it impossible for Palestinians to obtain them, thereby legalising the destruction of their property as a measure designed to leave them with no choice but to leave their home.¹ The law requires permits for Palestinians to travel between areas in the OPT, their own country.¹ The law condemns Palestinians to death for murder of Israelis but is blind to the mass murder of Palestnian’s in Gaza, which is a plausible genocide.¹

But this law is also the product of the world’s failure to fulfill the requirements of the ICJ’s provision measures order, an order issued to prevent irrevocable harm to the subject matter of of the case, which in this case is the lives of the people of Gaza.¹ This faliure proved beyond all doubt that the world will accept Israel’s fundamental violation of the spirit of the international legal system personified in the preamble to the UN Charter that declared the equality of all people and nations.²³

Given that context, it is not surprising that one of the men whose statements are highlighted as proof of genocidal intent in South Africa’s genocide case against Israel, Itamar Ben-Gvir, would describe such a law as justice.⁶ Ben Gvir has eight convictions including incitement to racism against arab’s and possession of propaganda for a terrorist organisation: the Kach Political party.⁶ The Kach party was banned as a terrorist organisation in Israel for its statements of support of Baruch Goldstein, who murdered 29 muslim worshipers in the Ibrahimi mosque in Hebron.²⁴ Goldstein’s continues to be venerated today, including by Ben Gvir himself who used to display a portrait of Goldstein in his living room before he became a politician.⁶

The explicit justification for this law which in Ben Gvir’s words is a ‘clear decision, whoever chooses terrorism chooses death’⁵ also unveils the justification for nearly all crimes that Israel has committed against Palestinians: security from terrorism.

The right to Security:

Since 9/11 debates about the right to security have occupied a prominent position in politician discourse. But such debates have long been common in Israel. As Professor Edward Said highlighted in 2001, Israel presented itself as a victim of terrorism by Palestinians since 1948 and its Arab enemies as in league with terrorists therefore its actions are merely a response to the same evil that caused 9/11.[^24] In doing so, Israel sought to justify its actions as necessary to guarantee its own security, just as US actions would be a necessity to guarantee its own security.[^24] This dynamic has become common during the wider war on terror. The west is often presented victim of terrorism and its responses can always be justified as necessary for to guarantee security.

There are two major problems with this. The first, is best articulated by Mourid Barghouti in his book, I Saw Ramallah:²⁵

‘It is easy to blur the truth with a simple linguistic trick: start your story from Secondly. Yes, this is what Rabin did. He simply neglected to speak of what happened first. Start your story with Secondly, and the world will be turned upside-down. Start your story with Secondly, and the arrows of the Red Indians are the original criminals and the guns of the white men are entirely the victims. It is enough to start with Secondly, for the anger of the black man against the white to be barbarous. Start with Secondly, and Gandhi becomes responsible for the tragedies of the British. ‘.

Barghouti refers to speeches given by Israeli prime minister Yitzhak Rabin during the post-Oslo accords period but this phenomenon can be observed all throughout the so called war on terror. From America ignoring it’s role in funding groups that went onto evolve into Al-Qaeda to the UK ignoring longstanding discrimination and partition as long historic causes of the troubles, there are too many examples to list. All political violence, whether it be committed by states or non state actors is the product of its context and to drain the context away is to undermine the search for a solution to the question of how to respond to political violence including terrorism. To acknowledge this fact, far from justifying political violence, is the first step to understanding its causes, which is the first step to addressing it.

But it is the second problem that is arguably more concerning, this new law is proof of a awful truth that has become clear since 9/11:

The security versus liberty debate is dead.

No price in liberty, in human rights, is too high for security.

The price of security after 9/11:

Gunther has argued, laws that undermine equality and human rights are often framed as a ‘promise of security to “good” citizens against “evil” ones’ and as a result ‘good’ people assume the rights will remain unaffected.²⁶ This logic is clearly on display across the world any time there is an expansion of state power to guarantee security and it has become increasingly prevalent since 9/11.

In the UK, the law permits citizenship deprivation on the basis it is conducive to the public good.²¹ This ground affords wide direction to the home secretary in determining whom will be subject to citizenship deprivation. The original language of this law, passed in 1981, was far less broad, it focused in disloyalty to the country, supporting the enemy during war or has been imprisoned abroad within the last 5 years for more than 1 year.²⁷ Each time the language was changed to broaden the discretion afforded to the Home Secretary, security was the justification. Each time the procedural protections afforded to persons subject to this power, from the loosening to the eventual dispensation of the right to notice to the scope of persons that the power affects from dual citizens to now including naturalised citizens whom may have an entitlement to citizenship abroad,²⁸ security was the justification. Citizenship is in the words of Hannah Ardent,²⁹ is the right to have rights, without it a person has no human rights, as seen by the violations of human rights experienced by persons subject to deprivation who are detained on northern Syria.³⁰. The deprivation power can be used against 3 in 5 non white citizens but only 1 in 20 white citizens,³¹ but despite this, the government continues to use this power. This law is racist in its effect but even this can be justified in their view by security.

In the US, the notorious prison in the US naval base in Guantanamo was split between American citizens and Non American Citizens. James Yee, the former chaplain at Guantanamo bay, discusses his experience of solitary confinement and sensory deprivation when he was detained there as the result of espionage charges that were later dropped.³² The treatment of non-American detainees was far worse as the result of the fact that the rights within the US constitution did not fully apply to them.³³ Furthermore, the same situation applies to drone strikes that kill terrorists, as even President Obama accepted that strikes against US citizens raise constitutional issues not present in cases involving non US citizens, despite claiming that the high threshold for the use of drone strikes mean such strikes are legal even if they target US citizens.³⁴ Again both the drone strikes and detention and torture of detainees at Guantanamo were justified on the basis of security despite inherently racist interpretations of human rights under the US constitution being at the heart of both.

The logic described by Gunther is similar to Aradau’s discussion of the role of security as legitimising ‘inequality and the unequal relations between sovereign and subjects, state and individual, inside and outside, domestic and international’.³⁵ This is also clearly on display in Israel- it security has been used to legitimise both apartheid and was employed in Israel’s case before the ICJ in the genocide case brought by South Africa.

Israel sought to attempt to justify its apartheid system and other violations of international law against the Palestinian people, from building the wall to the permit system in operation in the West Bank, as measures necessary for security. In doing so the effect on the Palestinian people of such measures were at best deemed a necessary evil or at worse were not considered at all. The ICJ rejects this logic in their advisory opinion.¹ Israel’s defence in the Genocide case filed by South Africa, at this early stage in proceedings focuses on security too.³⁶ Israel claimed that issuing provisional measures would result in Israel paying a ‘serious political and security price’.²¹ Twice in these legal proceedings counsel for Israel claimed that the provisional measures requested by South Africa would not be a shield designed to protect the subject matter of the legal proceedings, but a ‘sword’ directed at the state of Israel.³⁶ Given the nature of the provisional measures, which entirely focused on saving the lives of Palestinians and preserving evidence for later stages of these proceedings, this argument has no merit. The ICJ again rejected this security argument and issued provisional measures.¹

The only conclusion that can be reached is that Israel views the violation of Palestinian rights as a consequence of their need for security. Given this logic, it is unsurprising that they have passed this law- it is an extension of the logic they have employed before. Any price can be paid for security, particularly if that price is paid in the rights and lives of the people of Palestine or to use Gunther’s metaphor, if the price is paid those deemed to be ’evil’ people. But under the death penalty law, the determination of whom is ’evil’ is driven by racism against Palestinians.

In each country discussed above, the US, UK and Israel it remains questionably whether the laws discussed above actually increase security. The majority of Guantanamo detainees have been released without charge, the drone strike programs has been shown to have radicalised many young people in areas it was active such as Pakistan. It was noted in the high profile deprivation case of Shamima Begum that persons who pose a greater security threat according to the security services have been allowed to return, but she was subject to deprivation of citizenship.³⁷ which gives rise to questions about how necessary deprivations are to deal with security risks. The argument put forward in the Knesset that the death penalty law can be justified as a deterrence has no evidence to support it but the data from countries that have abolished the death penalty does not indicate that the death penalty is an effective mechanism of deterrence.³⁸ Laws of this nature are easy Israeli’s to accept their human rights remain largely unaffected by such laws because it is not their right to life that is being eliminated, it is the right to life of Palestinians that is being eliminated. But as many have pointed out since this law has passed, this law is merely a new step in the judicialisation of the disregard of the value of the right to life of Palestinians that has been on clear display within since October 2023.¹

Such a law is easy for Ben Gvir to advocate for, because the settlers who support him and his party are not tried before military courts when they kill Palestinian’s and their offences do not meet the requirements of this law because it only applies to those to delegimise Israel. They will not be subject to a mandatory death penalty. Even for those that support the death penalty, this law is unbearably cruel, like all measures that are part of a Apartheid state.

Israel is merely employing the same justification that is used to justify every human rights abuse committed during the Global War on Terror. Those who accepted the necessity of the war on terror, have manufactures consent for Israel’s actions. And while some such nations in Europe have condemned the law, they appear unwilling to take any further action.³⁹ This is despite their participation in building a reality where when lady justice weighs the value of human rights against security, security always wins- even when the right is the right to life. And as a result, each time Israel expands its apartheid system, each time Israel seeks to justify another violation of Palestinian rights, the West do not merely bear responsibility because they support Israel, politically, economically or militarily, they bear responsibility because this is the end point of the fallacy they employed during the war on terror: Security for some can be justified at any price including a price measured human lives and suffering.

It is appropriate to end with the words of Mohammed Moussa, poet, podcast host and founder of the Gaza Poets Society:

‘Just Like that, the Palestinian demands Shrink: a tent instead of a country, an abrupt death instead of a long war and jail forever instead of a rope.’⁴⁰

Postscript: It should be noted that many of the ordinary arguments against the death penalty are not discussed in this post but they naturally are relevant.

Israel has executed two persons in its history, the second was Adolf Eichmann a Nazi officer responsible for the Holocaust.⁴¹ The first was Meir Tobianski, who was an army officer and was executed as the result of a false accused of espionage and a conviction for for treason. He was exonerated after his death as is all too common in death penalty cases.⁴¹